New Health and Safety Sentencing Guidelines: the main changes and the likely impact.

In November 2015, following consultation, the
Sentencing Council for England and Wales (‘the Council’) published new
sentencing guidelines titled ‘Health and
Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences –
Definitive Guideline’ (‘the
Guidelines’).

The Council’s aim was to produce guidelines that
would set out a clear process, which if applied consistently should achieve a
fair and proportionate outcome and that the fines imposed would reflect the
seriousness of the case and the means of the offender. This was due to concern
that there has been inconsistency in sentences imposed in these types of cases
and that the fines have been too low.

The Guidelines can be accessed here.
The Guidelines will come into force on 1st February 2016 and will
apply to all organisations and offenders (aged 18 or over) sentenced in England
and Wales on or after this date.

Main
Changes

The previous health and safety sentencing guidelines,
which were published in 2010, only related to organisations and to cases where
the most serious harm (death) had been caused (‘the 2010 Guidelines’). The
Guidelines apply to individuals and organisations in relation to the most
commonly sentenced health and safety offences[1],
corporate manslaughter and food safety and hygiene offences. In this article, the
focus will be on the impact to health and safety cases.

The Guidelines set out a detailed 9 step process
for the Courts to apply when it reaches sentencing. The first step for the
Court is to consider the culpability of the offender and the seriousness of the
harm, before it can determine the correct sentencing category. Culpability is
divided into 4 categories: very high, high, medium and low. ‘Very high’ would
include a deliberate breach, whereas ‘low’ would include a minor failing and an
isolated incident.

Perhaps one of the most significant changes in the
Guidelines relates to the Court’s assessment of harm. The Guidelines make it clear
that the assessment of harm is of the risk created by the offence, rather than
actual harm. The Court will assess the seriousness of the harm risked (level A,
B or C) and the likelihood of the harm arising (high, medium or low). These
factors are combined to produce the harm category (for example, a ‘level A’
risk (for example, death) with a medium likelihood rating will result in harm
category 2). The Court will then also consider whether the offence exposed
worker(s) or members of the public to the risk of harm and whether the offence
was a significant cause of the actual harm. If either of these apply, the Court
may move up the harm categories.

For corporate manslaughter, the harm and
culpability will always be serious. The Guidelines then set out 4 questions for
the Court to use when assessing the seriousness of the case. The offence is
then categorised as either: A – more culpable or B – less culpable.

The Court will use the culpability and harm
categories to identify a starting point for the sentence (the more serious the
categories, the higher the starting point will be for the sentence). These are
set out in tables within the Guidance[2].
The tables divide organisations into 4 categories based upon the size of the
offending organisation. An organisation is categorised on the basis of turnover
only. The categories are as follows: Large – turnover of £50million +, Medium –
turnover of between £10million and £50million, Small – turnover of between
£2million and £10million and Micro – turnover of not more than £2million.

The tables for individuals include a range of
penalties from a conditional discharge at the bottom end of the scale to
between 1 and 2 years’ custody at the top.

As set out in the 2010 Guidelines, the Court will
then consider aggravating and mitigating factors. A non-exhaustive list, with
some changes, has been provided.

The Court is then required to take a ‘step back’
and review the fine to ensure that it fulfils the general principles, which in
summary are:

·
The fine should reflect the seriousness of the
offence and take into account the financial circumstances of the offender.

·
It should ensure that it is not cheaper to offend
than to take appropriate measures.

·
For organisations, it should have a real economic
impact.

When reviewing, it will also be appropriate for the
Court to consider the following:

·
For organisations, the profitability of the
organisation.

·
Any economic benefit gained from the offence should
be added to the fine.

·
The impact the fine will have on innocent parties
(for example, employees of the offender).

The Court also has a clear discretion throughout
the Guidelines to step outside the ranges should it consider it necessary to fulfil
the general principles.

What
impact will the Guidelines have?

The Guidance clearly states the offence is creating
a risk of harm, as opposed to actual harm. This is likely to result in an
increase in the sentence imposed on individuals and organisations as the Courts
are likely to now consider the distinction between the two as less significant
when considering sentence.

The 2010 Guidelines provided that fines for
corporate manslaughter will “seldom be
less than £500,000” and for health and safety offences causing death will “seldom be less than £100,000”. The Guidelines
provide scope for much higher fines than this, for example, where there has
been a death or serious injury and the culpability and harm are assessed at the
highest level, the starting points are: £4million for a large organisation,
£1.6million for a medium organisation, £450,000 for a small organisation and
£250,000 for a micro organisation. For corporate manslaughter, the starting
points range from £300,000 to £7.5 million.

The way the Court categorises organisations relates
only to turnover when previously turnover and profit were considered. Although
there is consideration of profit at a later stage, the category an organisation
falls into will be based upon turnover, which sets the range of penalties and
the starting point. For organisations significantly above the category of
‘large’, the Court is permitted to move outside the Guidelines entirely.

For individuals, there are much clearer guidelines
for custodial sentences, which may lead to more custodial sentences being
imposed for these types of cases.

It is clear that sentences imposed will increase
and so it will be important to try and demonstrate to the Court that defendants
fall within the lowest categories.

The Guidelines do also provide for certain
information to be considered when settling on a penalty, including the impact
on innocent parties and low profit margins so it will be important for defendants
to present any supporting evidence in this regard. The Guidelines state that it
will be up to an offender to provide sufficient financial information. Should
this not be forthcoming, the Court may make an inference that the offender can
pay any amount of financial penalty.

Will
the Guidelines have an impact in Northern Ireland?

As stated above, the Guidelines relate to England
and Wales only and are not binding in Northern Ireland. The 2010 Guidelines
also only applied to England and Wales.

There has, however, been a trend in Northern
Ireland of the Courts using the 2010 Guidelines to assist with sentencing in
cases of health and safety offences causing death and corporate manslaughter
cases. This is due to the absence of any equivalent guidelines in Northern
Ireland. It remains to be seen whether the Courts in Northern Ireland will now
apply the Guidelines when sentencing in these cases, but there is no reason to
think that they will not continue with this trend.

For further information on health and safety
law, or to discuss any questions arising from this article, please contact
Olivia Carroll on [email protected] or 028 9034 8829 or another member of the health
and safety team at Carson McDowell.

[1]
Organisations:Health and Safety at Work Act 1974, section 33(1)(a)
for breaches of sections 2 & 3 (breach of duty of employer towards
employees and non-employees and breach of duty of self-employed to others) and section
33(1)(c) (breach of health and safety regulations).

Individuals: Health and Safety at Work Act 1974,
section 33(1)(a) for breaches of sections 2, 3 and 7 (as above and breach of
duty of employees at work), section 33(1)(c) (as above) and sections 36 and
37(1) (secondary liability) for breaches of sections 2, 3 and 33(1)(c) (as
above).